Searching for Shared Custody

April 24, 2015
By
Matthew Clawson

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Fathers are asking state legislatures throughout the country to pass laws
that would require courts to order 50/50 shared custody of children in
divorce proceedings. Proposed laws would require judges who do not order
50/50 custody between divorced parents to explain in writing why that
presumed custody arrangement was not appropriate. In the 2015 legislative
year, 17 states (including Colorado) introduced so-called “shared
parenting” legislation for consideration in their state legislatures.

Theories of child custody have evolved over the years. Early in the 20
th century, when divorce was rare, courts assumed that children “belonged”
with their mothers in the event of a divorce, especially during infancy
and the toddler years. About 50 years ago, courts adopted a standard that
provided more flexibility to the family court judge: to devise a child
custody arrangement that was “in the best interest” of the
child. This legal standard has survived to the present day in most states,
including Colorado.

Fathers say that the current legal standard of “best interest of
the child” operates in most cases to cut them out of the child’s
life. Psychologists say that a father is not performing the best parenting
for a child if he is limited to the typical “Wednesday dinner and
every other weekend” child custody arrangement. In this type of
arrangement, the father is not supervising daily homework or getting the
child ready for daily school. In such situations, says Linda Nielsen,
a psychology professor at Wake Forest University, the father “is
basically reduced to an uncle.”

Although courts in many states aspire for “joint custody” of
the children of divorce, statistics show that this goal is rarely achieved
in even 50% of the cases. Advocates of shared custody argue that state
laws should expressly endorse the benefits of two-parent child relationships,
even after a divorce, and encourage such arrangements as a presumptive
order of child custody so that the father is not cut out of his child’s life.

Opponents of the laws say that healthy divorcing couples reach “shared
custody” as a matter of agreement, memorialized in the court’s
order of custody, and that is the best way to embark on a “shared
custody” arrangement outside of a courtroom fight. Critics of the
shared custody bills, mostly family lawyers, say that the bills will take
away necessary judicial discretion from family law judges. They say that
if the parents cannot agree on a shared custody arrangement, then a court-ordered
one would be contentious and ineffective as a workable parenting arrangement
for the children. Other opponents of the proposed laws say that shared
custody laws will give men with histories of emotional or physical abuse
more power during divorce negotiations—resulting in harm to the children.

The proposed laws are mostly supported by Republican legislators. In Colorado,
the proposed shared custody law (Senate Bill 15-129) was introduced in
the Republican-controlled Senate, where it passed. But it was killed in
committee in the Democrat-controlled House in mid-April and will not come
to a vote in the Colorado House. Other states are still considering whether
to enact shared custody laws.

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